Image of piano notes to the Happy Birthday song

THE "HAPPY BIRTHDAY" SONG IS NOT  IN THE PUBLIC DOMAIN

            You might not have known that before last Tuesday, if you had wanted to use the world’s most popular song, “Happy Birthday To You,” in a movie, TV, or any other profit-seeking performance, you would have had to pay a hefty sum to Warner/Chappell Music, Inc., who everyone thought was the copyright owner of the entire song—both lyrics and music. Warner/Chappell has collected about $2 million in royalties, enforcing a purported copyright on the whole song since 1988, when it bought certain rights from a company that itself had bought rights from the original copyright holder.

           It therefore came as a big shock and surprise when, on September 22, an L.A. federal judge ruled that Warner/Chappell does not, in fact, own a copyright in the lyrics, since none of its predecessors owned such a right: “Because Summy Co. never acquired the rights to the Happy Birthday lyrics, Defendants [that is, Warner/Chappell], as Summy Co.’s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics.” (See pages 42-43 of the court’s detailed decision, through this link: http://documents.latimes.com/happy-birthday-ruling/)

            Many unknowledgeable commentators, who apparently haven’t bothered to read the decision, have been celebrating the ruling as if the entire song—lyrics and music--is now in the public domain and may be used freely by all comers. That is not what the court ruled, nor what the law now is. The ruling is limited to the lyrics, which, at least pending possible action by an appellate court, may be deemed to be in the public domain. The Ninth Circuit Court of Appeals or the U.S. Supreme Court could overturn the trial judge’s rulings if Warner/Chappell appeals.

            The ruling is good news particularly for entertainment producers who really need to include the song in their production but for whom the royalty—even for a few seconds’ use of the song—has been too steep. It remains to be seen how, among other things, Warner/Chappell, left with rights to the music, will assess and receive royalties for the exploitation of rights they still own. In the meantime, the plaintiff’s lawyers in the case reportedly are planning a class-action suit to recover the “millions” in royalties that Warner/Chappell collected over the years for a copyright it never owned.